Do you need an export license for ESA?

I will start this article with a simple question: does an European company that sends a design document or a satellite to the European Space Agency (ESA) require an export license for the same? The obvious answer seems to be “no, never” but is that really the case? Since in the last month I dug into the legal texts I am not so sure any more. Let’s have a look!

Why do we need export control?

Satellites are dual use goods. That means they can be used for both civilian as well as military purposes. Considering that modern rockets were invented to drop stuff on our neighbors and all types of satellite applications were used (and often invented) for military purposes from day one it makes sense to make sure they don’t fall in the wrong hands.

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In the past it was also the case that only very few countries were fully self sufficient. That means for better or worse Space was a domain of collaboration. In order to facilitate this and still limited harmful proliferation countries formed export control agreements.

Legal Framework

One of this agreements is the Wassenar Arrangement. Together with other key agreements like the missile technology control regime (MTCR) it forms the core of the international treaties laws under which most space objects are handled.

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The Wassenar Arrangement has two separate lists: the dual use list and the munitions list.

Wassenar defines a munitions (military) and dual use goods list

The munitions list has 22 categories and covers mostly outright military goods. Satellites, except for when they are explicitly designed for military applications or themselves using military goods or technology, can therefore be found in the dual use list.

With few exceptions satellites and components are included in the dual use list.

The dual use list has 9 categories. From materials (1) to aerospace (9). You would however be mistaken to look for relevant space articles only in category 9. These categories are kept the same across different nations so that the dual use identifier across signatories is the same.

You might think only category 9 holds the key to space but you need to check several other categories, too.

In each category has identical subcategories, good itself (A), equipment to manufacture (B), materials from which the goods are created (C), software (D) and technology (E) both used in the development, production or use of said goods.

Five subcategories exist for listed goods. They make sure that not only the end product is protected but also all means to design and manufacture those.

For our case we will keep in mind that technology (E) is defined as “mandatory required to design or manufacture” a listed good. For example 9E001 is technology to design and 9E002 is technology to manufacture goods of the category 9A004. Category 9A004 includes among others satellites (b), bus platforms (c), satellite payloads (d), satellite subsystems (e) and satellite simulator / support hardware (f). Considering the excruciating detail one is expected to show to ESA in reviews and documentation – which certainly is not the minimum required for AIT, operation and maintenance (general declaration of technology) – it seems obvious that in addition to the good there will be an technology license required, too.

What does it take to be member of this club?

To be a part of Wassenar Arrangement the signatory a nation needs to handle sensitive goods and need to fulfill certain conditions and uphold certain principles:

  • Be a producer or exporter of arms or dual use equipment
  • Maintain national non-proliferation policies
  • Adherence to international non-proliferation treaties
  • Maintain fully effective export controls*

*) This point will be of relevance later on.

New members can only be brought in unanimously by agreement of all prior members. Latest and 42nd member was India in 2017.

The Case of the European Union

As a signatory the member country makes sure that the dual use list as well as the munitions list as well as certain rules become mandatory under the national law. The rules make sure that no listed good leaves the country without proper authorization (export license). The European Union as a supra-national entity has a special role to play here. Instead of maintaining the proliferation regime for every country individually the EU is the host from which the law originates. That means the EU makes the relevant Dual Use list and corresponding rules and all member countries have as a minimum to employ these level of restrictions. As a result shipments across borders between EU members are not considered an export. This privilege is part of the unified market that the EU has established.

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The EU export regulations are in line with its requirements from the Wassenar arrangement for as long as you don’t mind a certain wormhole which literally can go anywhere.

EU Dual Use Regulations [3]

In May 2021 the EU published a new and reworked dual use list. The quotes that I show are from this latest version. The source can be found in the annex.


The dual use regulations of the European Union are the law describing the rules and regulations regarding dual use export controlled items. The preamble states the following:

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From this we can learn that the export control regime needs to be effective and common across all EU member states. This will enable the free movement of dual use goods inside the EU customs territory. In short this describes the privilege that intra EU shipments are not export controlled. To differentiate what is an intra EU shipment we will later look at how “customs territory” is defined. Before that let us look what further things are defined in the main articles of the document.


After the preamble the dual use regulation defines important things. In article 1 we can learn that this law is applicable to basically anything imaginable in relation to dual use goods.

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In addition article 2 defines what a dual use good is as well as what an export is.

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The scope of the dual use regulations is shown in Article 3 of the name sake chapter. It insists that for all goods listed in Annex I the exporter requires an export license. Annex I are all dual use goods.

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Let’s chase this down the rabbit hole and look first into the customs code:

Customs Code [4]

Export of Union Goods

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Finally: for an export of a dual use controlled good the relevant procedure (export license) needs to be applied for (using common rules across the EU). An everything that leaves the customs territory of the EU is considered an export. Then we shall go there next.

Customs Territory

The customs territory is defined in Article 4 of the EU Customs code. It basically covers all land, internal and territorial waters as well as air space of EU members. Since we are discussing whether the transfer of physical and immaterial goods to the European Space Agency is an export and thus requiring an export license the main question is where is the European Space Agency located? Is it inside or outside the Customs territory.

The nature of the location of ESA

While some but not all locations of the ESA centers are located so that they are physically surrounded by EU member states it would be open to debate whether they are inside one. I would argue that these are extra territorial enclaves or at the very least not part of the territory in which EU customs rules apply.

Privilege and immunities [2]

As evidence I present: the privileges and immunities of the European Space Agency granted by the ESA member states. In addition article IV which grants ESA immunity “being except from jurisdiction and execution”, article VI states that ESA is exempt from taxes, duties and import & export restrictions.

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This we need to look into more detail:

(1) Goods imported or exported

Since the article speaks of goods – in the context of the Wassenar Arrangement and consequently EU dual use regulation -goods – mean subcategory (A) – this does likely not include sub-categories (B), (C), (D), (E). To this end even with a valid export license for goods, at the very least technology that goes beyond the minimum required for assembly, integration, maintenance and operation, is not included.

Considering the level of detail and access routinely required by ESA in project reviews it is obvious to me that this is beyond this minimum. Therefore even if in the end the goods are included (which I doubt, see point 2) then the technology would require a dedicated license.

(2) By the agency or on its behalf

To my understanding this includes the Agency and potential shipping handlers that the agency employs. This does not include the company which exports something to ESA. The reason is that it is always the Exporter that has ultimate responsibility (not the importer). This is borne by the fact that only the Exporter is in the legal jurisdiction of the EU, the recipient who is outside the EU customs territory is not. Consequently if you export something to ESA that is at least to my understanding not an export on ESA’s behalf.

Reference: REGULATION (EU) 2021/821 – Article 2 Paragraph (3)

Considering that MTCR exemptions for the exporter are explicitly mentioned in the EU dual use regulation [3], I would interpret this that in general these import & export privileges do not extend to somebody exporting an non MTCR item to ESA.

(3) Strictly necessary

I wonder who is defining the strictly necessary here.

(4) Exempt from all import and export duties and taxes

Considering (1) and (2) should be interpreted that ESA is not part of EU customs territory. Consequently if “company A” wants to bring something to ESA it will have to move the items outside the EU customs territory and consequently an export license is required.

(5) Exempt from all import and export prohibitions and restrictions

Considering (1) and (2) only speak about the agency but not about the exporter, meaning the requirement for an export license for “company A” is still in place.

Lets digest this

I think it is fair to say since member state jurisdiction does not apply – as a broad exemption towards customs duties as well as export restrictions were granted – that ESA is not part of the customs territory of the ESA member state (otherwise they would be able to levy customs). If it is not part of the customs territory of the EU member state it can consequently not be part of the EU customs territory, too.

Given the amount of exemptions and immunities that ESA has its hard to argue for it to be inside the EU customs territory.

Another clue in this matter is that the EU for other types of sensitive information (GDPR) mandates that ESA is not iside the EU and that for all transfers of personal data the company transmitting these needs to have an agreement with ESA in place guaranteeing their safekeeping according to EU standards [6]. If the EU considers ESA to be outside the EU for the GDPR then I have a hard time to assume it would be any different in export matters.

If under EU GDP international organizations such as ESA are considered to be outside the EU, then similar thoughts likely apply for export law.

For the sake of the argument lets assume that ESTEC and the other ESA centers would belong to the customs territory of their host states. That would solve most problems for Companies sending items to ESA from the EU. However, there are a few caveats: first ESA ECSAT center [5] is evidently not located in the EU and the ESA member states that are not part of the EU would nevertheless be required to apply for an export license. An added complication in such case would be that ESA would have an export border inside of them. Then the next question would be, does ESA have internal policies how to not transfer export controlled information between ESA centers inside and outside the EU?

Possible Exemptions of EU Dual Use law [3]

I also checked for possible exemptions and indeed there is an exemption towards all elements of the missile technology control regime.

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MTCR, as the name suggests, only deals with a sub-group of Annex I dual use items. For example the 9A004 category contains space launch vehicles, space craft, spacecraft buses, spacecraft payload, on board systems, terrestrial equipment, air launch platforms.

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Of these only space “launch vehicles with >500kg payload over 300km” are listed Annex IV MTCR exemptions for ESA.

But isn’t ESA exempted from export Control?

Well, that is a rule that applies to ESA when they (import or) export but not to the exporter who wishes to export to ESA (article VI of ESA exemptions and Immunities).

Reference: REGULATION (EU) 2021/821 – Article 2 Paragraph (3)

The only other exemption that I was able to find is for exporting items under the missile technology control regime (see above). That’s rockets, not satellites. Interestingly that MTCR is explicitly exempt (for legal business with ESA) but not nothing else is mentioned in annex IV or elsewhere in the dual use list gives a strong indication for non MTCR parts of annex I you actually need an export license when dealing with ESA.

Since MTCR exemptions are clearly listed is an indicator that non MTCR items are not.

Another line of argument could be to refer to Article VI of ESA privileges and immunities. That states import […] prohibition and restrictions. Unfortunately neither applies to you because you (as the exporter) wanting to bring a good outside the EU customs area are not ESA. Consequently the restriction is not on ESA. On the other hand there is a very clear requirement for any exporter to get an export license before any export of listed items.

ESA might have exemptions based on Article VI of their immunities list but the exporter who wants to deliver to them does not.

In general however I would wager that any exemption for ESA, in a very legalistic term could be seen as a potential threat for the EU’s membership in the export agreements. This is due to the fact that the EU is required to have a “full and effective export control”.

By not controlling what goes to ESA the EU could potentially violating their obligation for an “effective export control” regime.

Remember that statement from early whereas membership in the Wassenar Arrangement requires it? If these exemptions are really in place then the contract with ESA would essentially have created a loophole to get export controlled things out of their jurisdiction (EU) without them exercising proper control. Worse the loophole leads to a 3rd party which is by statute not beholden to any “export prohibition and restriction”.

If ESA wanted to export restricted goods to an embargo country, they could – based on the exemptions granted to them by their founding members.

Since these rights have been granted by the ESA member states to ESA that means that they themselves prevent the EU to have an “fully effective export control”.

So where in the world is ESA?

Like in that old game it is not so easy to pinpoint where ESA is. Sure, you can point where on the map the different centers are but what is more importantly what is the legal status. I personally see the following options:

  • Option A) ESA is outside European Union customs territory.
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  • Option B) ESA has no common location but is also not extra territorial
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  • Option C) ESA has the location of its Headquarter (common location)
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Where does that lead us to?

  1. EU law says that dual use items (goods, technology & software) are export controlled.
  1. Any moving of such items beyond the EU customs territory is considered an export and consequently needs a license. To apply for this license is the obligation of the exporter.
  2. According to their own rules (privileges and exemptions) the European Space Agency is very likely not part of the customs territory of the European Union.
  3. There may be import immunity for ESA but certainly no automatic export license or export immunity for exports of EU based exporters to ESA.
  4. EU dual use regulation only exempts MTCR items of dual use list for legal business with ESA. This is an indicator that all other parts are not.
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And so consequently, at least to my understanding, any exporter inside the EU who wants to export a listed non MTCR item to ESA will require an export license.

How to solve this?

First of all I am not entirely sure my conclusions is correct. However, I thought I’d share it here since the implications of my conclusions on somebody sending listed items to ESA without an export license would rather strong. Maybe there are some lawyers in the audience who can give their opinion. That said, if I am correct then the simplest way to remedy this would be to insert the ESA as a destination for the EU001 license. Following example how quickly the UK was added to EU001 after Brexit I think a similar strategy could be employed with ESA. This would also solve the problem of ECSAT or any other center in a non EU ESA member. If the automatic licenses of 3rd country ESA member states are equally adapted this would solve the problem for all ESA member states. However, since an automatic license such as EU001 would require ESA to have an appropriate export control regime, the privilege of not being subject to export restrictions likely needs to be discussed.

How can you help:

This text is part of a series of articles in which the author sets the framework to start a discussion about the wrongs of the space industry. If you have experienced similar things, leave a comment. Other views and opinions are very welcome, too, as they may present a way forward. Please be kind to each other.


The author’s views are his own do not represent the views of Berlin Space Technologies.


[1] Wassenar Agreement – wikipedia

[2] ESA Privileges and Immunities

[3] EU Dual Use Regulation – (EU) 2021/821

[4] EU customs code (EU) 2013R0952


[6] Excerpt from the letter of BHO legal to their clients 15.07.2021:

“Die DSGVO geht grundsätzlich davon aus, dass innerhalb der EU […] ein angemessenes Datenschutzniveau herrscht […]. Ist jedoch (mindestens) eine Stelle, die in die Datenübermittlung involviert ist, außerhalb der EU […] – oder aber eine internationale Organisation (wie z.B. die ESA) – dann ist fest- bzw. sicherzustellen, dass bei dem „Datenaustauschpartner“ ein angemessenes Datenschutzniveau besteht.”

translation by author

“The GDPR assume that within the EU there is a sufficient data protection level. In case at least one participant of the exchange is not in the EU or is an international organization such as the European Space Agency then the transmitting entity has to make sure that the receiving institution has a appropriate data protection regime in place.”






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